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This resource is hosted by the Nelson Mandela Centre of Memory, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.

Declaration Of The Seminar On The Legal Status Of The Apartheid Regime And Other Legal Aspects Of The Struggle Against Apartheid

(Lagos, 13-16 August 1984)

Introduction

The international Seminar on the Legal Status of the Apartheid Regime and Other Aspects of the Struggle against Apartheid was organised by the United Nations Special Committee against Apartheid in co-operation with the Federal Military Government of Nigeria.

The Seminar brought together jurists and social scientists from a number of countries in Africa, Europe, North America and Asia, representing the principal legal systems of the world. The Seminar was opened by H.E. Major-General J. N. Garba, Chairman of the Special Committee against Apartheid, and heard addresses from H.E. Dr. Ibrahim A. Gambari, Minister for External Affairs of Nigeria, H.E. Mr. Ibrahima Fall, Minister for Higher Education of Senegal and H.E. Mr. E. J. M. Svogbo, Minister for Justice, Legal and Parliamentary Affairs of Zimbabwe. The greetings of the Secretary-General of the United Nations were communicated to the Seminar by Mr. Enuga S. Reddy, Assistant Secretary-General in charge of the Centre against Apartheid.

The Seminar elected H.E. Mr. Chike Ofodile, Attorney-General and Minister for Justice of the Federal Republic of Nigeria, as its Chairman.

Statements were made at the opening sessions by representatives of the African National Congress of South Africa, the Pan Africanist Congress of Azania, the Secretary-General of the International Commission of Jurists, the Palestine Liberation Organisation, the Movement of Non-Aligned Countries, the United Nations Educational, Scientific and Cultural Organisation and the League of Arab States.

The Seminar recognised that recent developments in southern Africa made it imperative for the international community to understand the urgent necessity for action through the application of international law to a situation which constituted one of the most serious threats to international peace and security.

Southern Africa today is a battlefield. For several years, the South African regime has been fighting an undeclared war against its neighbours. Military aggression, combined with economic pressure, has been the chosen method of regional destabilisation and domination. South Africa has invoked the discredited legal notion of sphere of influence in order to enforce the colonial idea of a constellation of States.

The consequences have been devastating. Thousands of Angolans, Mozambicans, Namibians and South African refugees and citizens of other independent States have been killed, maimed and made homeless. Refugee camps have been particular targets of the South African regime. Economic damage to Angola and Mozambique alone amounts to over $US 14 billion.

Namibia's one and one-half million people are subjected to a ruthless military occupation by South African troops and police. A tenth of the population has been driven into exile; 80 per cent of the population lives under martial law; hundreds are detained without trial or have "disappeared" after arrests. Church leaders have described apartheid rule in Namibia as a reign of terror.

In South Africa itself, a massive militarisation drive coupled with a complex series of adjustments to the apartheid system - mistakenly referred to as reforms by some of South Africa's allies - have centralised and consolidated white state power. In this process, nearly 8 million Africans have been denationalised in pursuit of the South African regime's policy of establishing "independent" homelands for Africans, and nearly 3.5 million Africans have been deported from their residences. A new constitution is about to be inaugurated establishing a tricameral parliament for whites, so-called Coloureds and South Africans of Indian descent.

The Seminar recognised that the international community had already condemned the total illegitimacy of the new constitutional arrangements in South Africa. They represent a step in the direction of consolidating rather than eliminating apartheid. The principles of white domination, ethnic division and African exclusion run right through the constitution. Apartheid in the form of racial group areas was brought right into parliament. The white chamber has a permanent majority. The African people are totally excluded. White domination is legally protected under the constitutional phrase "own affairs" which excludes the competence of the other chambers to consider the whole legislative scheme of apartheid which is thus constitutionally protected.

The only acceptable constitution is one based on non-racial and democratic principles in which all the people have the vote on a basis of full equality in an undivided country.

At the same time, the black population of South Africa and Namibia, united in a common desire to rid the subcontinent of apartheid and colonialism and establish democratic societies, is increasingly committed to a struggle through their liberation movements which takes many forms including armed struggle. They are supported in this struggle by independent African countries and by people and Governments throughout the world. But some Western countries and their allies continue to support the apartheid system through their political, economic, military, nuclear, cultural and sporting collaboration in clear breach of international law.

Contemporary Law and Liberation

The Seminar recognised that international law has responded to the political issues arising out of the situation in southern Africa in a dramatic fashion. From the time the General Assembly of the United Nations was first seized of the race issue in South Africa in 1946, the General Assembly, the Security Council, specialised agencies and subsidiary organs of the United Nations, together with regional organisations, have established a repertory of practice unparalleled in modern international relations. Resolutions of international organisations, especially of the General Assembly, have deeply affected the perception of States through their state practice, of lawyers and the jurisprudence of the International Court of Justice in such a way that an international community consensus has been established.

International law has forged three important instruments which have won general acceptance. These are: (a) the rules relating to the right of self-determination; (b) the principle of the illegality of racial discrimination; and (c) the rules relating to the legitimacy of the liberation struggle in South Africa.

The Seminar discussed the ways by which these norms have developed. They arose directly from certain provisions of the Charter of the United Nations and derived content and precision from numerous resolutions and authoritative declarations of the United Nations and international conferences and conventions adopted by the General Assembly. These developments have given rise to rules of customary international law which have, therefore, often averted the need for ratification of treaties in certain cases.

The acceptance by the international community of the principle of jus cogens, certain basic, peremptory rules which control the freedom of States to enter into transactions and which regulate the effects of illegality on the international plane, has important consequences in the southern African situation.

There is, therefore, a strong body of law to support the international campaign for the eradication of apartheid and colonialism in South Africa and to provide support for the primary instruments of change, the national liberation movement of the people of South Africa.

Legal Status of the South African Regime

The central issue for law is the nature of the struggle in South Africa. It has been generally accepted incontrovertibly that the systematic, persistent and massive violation of human rights is not a matter of domestic jurisdiction, thus excluding external intervention. But the application of the principle of self-determination to the situation in South Africa has had the important consequence that the political arrangements under apartheid have been assimilated to a colonial situation.

The right to self-determination has emerged as part of jus cogens, overriding principles of imperative norms of international law which cannot be set aside by treaty or acquiescence, but only by the formulation of a subsequent norm of the same States to the contrary. The recognition by the international community that apartheid is a denial of a national right as well as human rights means that the rules and principles associated with the practice of the United Nations with regard to decolonisation apply in their entirety to the South African situation.

This approach culminated in the decision of the General Assembly of the United Nations to refuse to accept the credentials of the so-called representatives of South Africa on the grounds that they did not represent the whole people of South Africa and the regime lacked legitimacy because of its breach of fundamental rules of international law.

The colonial nature of the South African regime, the Seminar recognised, arises from the institution and operation of the apartheid system in South Africa. There are, regrettably, many countries in the world where the people do not have an effective say in government. Where South Africa is unique is that it is the constitution itself which excludes the overwhelming majority of the people from the exercise of sovereignty and does so on the ground that they are of indigenous origin. This is the fundamental legal fact of apartheid. Twenty-five million Africans, 72 per cent of the total population, have, ever since the Union of South Africa was created in 1910, been treated as a colonised population. What happened in 1910, when the Union of South Africa was set up was not an act of decolonisation by Great Britain but a grant of independence to the colonisers, not to the colonised who were neither represented at the negotiations nor listened to when they made representations. The relationship between the colonisers and the colonised altered only in that it subjected the colonised to even greater domination by the colonisers.

The granting of independence to the Union of South Africa preceded the modern principles of international law enshrined in the right to decolonisation and to the self-determination of peoples subject to alien domination and in the prohibition of racial discrimination. While other States which have had a history of oppressing national groups have recognised, to a lesser or greater degree, the rights of their indigenous peoples, South Africa is alone and unique in basing its State upon a policy of dispossession and the perpetuation of alien and colonial-type domination.

A regime which negates the legal personality of the great majority of its people on the ground that they are of indigenous origin, which deprives them of elementary rights and leaves them without citizenship and subjects them to massive, persistent and cruel racial discrimination cannot claim to be an independent community based on self-determination. It may have some of the physical ingredients of a State, but it lacks fundamental legitimacy because of its racist and minority foundations, Only the creation of a non-racial democracy based on the will of the majority of the population can introduce the element of legitimacy presently lacking.

The widely-known laws which impose racial discrimination in South Africa are essentially the symbolical and instrumental superstructure which maintains and reinforces the colonial base of apartheid, namely, the dispossession of the land (87 per cent reserved by the Land Acts for exclusive white ownership and occupation); control of movement (hundreds of thousands of blacks punished under the pass laws each year); control of residence in the form of bantustans in the rural area and locations and compounds in the urban areas; and control of labour, primarily under the pass laws and the legal system totally dominated and organised in the interest of the whites and resulting in two systems of law, one for the Africans and one for the rest of the population.

The establishment since 1976 of the so-called "independent" homelands - which has been denounced by the United Nations as an attempt to violate the right to self-determination of the people of South Africa and a further attempt to partition the national territory - has been presented to the outside world by the South African regime as an exercise in the right to self determination.

The Seminar considered it to be extremely important that the present international policy of non-recognition of the four "homelands" was strictly maintained and that covert recognition of their travel documents in their territories should not result in the subversion of the legal obligation of non-recognition.

The Seminar considered further that the legal objections to the granting of statehood to these homelands warranted a detailed analysis as to why the South African claim was impermissible.

The conditions for the exercise of the right to self-determination (derived from Article 1(2) of the Charter of the United Nations and common article 1 of the two International Covenants on Human Rights) are:

The "elements of a definition" of a "people" entitled to self-determination as formulated by the practice of the United Nations are:

In relation to the bantustans, the fundamental fact, universally acknowledged except in Pretoria, is that the scheme as a whole has been imposed by the racist regime against the will of the great majority of the people and with the objective precisely to frustrate their just claims to full rights in relation to the whole land. An examination of the details of the scheme merely provides factual proofs that the exercise was never seriously intended to constitute self-determination, which vests in and must be exercised by the South African people as a whole.

The alleged tribal units are not "social entities possessing a clear identity and their characteristics." They reflect rather the white view of African traditional culture rather than the reality. Some of the supposed tribes have no bantustan status; others have been divided into two bantustans (e.g. Xhosa), while more than one have been allocated to a single bantustan (e.g. the Pedi and Ndebele).

The territories of the bantustans are not coherent areas of traditional lands of African tribes, but a patchwork of small pieces of land with their frontiers drawn in such a way as to exclude the lands of powerful white settlers, of white-owned industries or important mineral resources. The territories of Bophuthatswana and Ciskei have been divided into 19 separate areas not counting the so-called "black spots."

A substantial proportion (in the case of Bophuthatswana amounting to 64 per cent of the majority) of the supposed "people" has little or no special relation to the territory concerned. These are Africans living in the so-called "white areas" who are being arbitrarily assigned by the Pretoria regime to one or other of the bantustans in order that it can later claim that there are no African citizens in the white areas. Those whose labour is no longer required are being deported to their allotted bantustan.

Applying the third element of the definition, the tribal units, in so far as they may be said to exist, are an example of the ethnic or linguistic minorities with which a people should not be confused. The people entitled to self-determination in South Africa is the entire population, and in particular the whole of the disenfranchised African population.

As to the second and third conditions for the exercise of the right to self-determination, the people concerned have not determined their political status or done so freely. The delineation of the territories, the allocation of the populations to these territories and the political status of the bantustans have been solely determined by the white minority and its Parliament.

The controlled elections or referenda by which the populations were supposed to have approved the creation of the bantustans were in no sense a free determination. An example was Vendaland where 80 per cent of the people voted against independence, but their elected representatives were then detained under "security" legislation, and the President of the bantustan elected by the minority representatives. Finally, the people concerned are in no sense "free to pursue their economic, social and cultural development." Seventy-two per cent of the population of South Africa has been allocated to 13 per cent of the total land surface of South Africa, much of it being poor agricultural land affected by erosion.

Over 70 per cent of the economically active population has no alternative but to engage in the migratory labour system to provide cheap labour for the white areas. Access to this employment is strictly controlled by the South African authorities. The bantustans are dependent upon South Africa for financing their budgets to the extent of two thirds to three quarters. A large part of this is devoted to financing deportations from white areas to townships and camps in the bantustans. Capital inflow is almost entirely channelled through agencies of the Pretoria regime. It is only a fraction of that needed to make the economies of the bantustans viable, and three times as much capital is provided to white-owned as to African-owned enterprises. The extreme poverty of the bantustans, the constant deportations and the white domination of their economy make meaningless any claim to freedom to pursue their economic, social and cultural development. It follows, therefore, that none of the conditions required under international law for a valid exercise of the right to self-determination is satisfied in the alleged conversion of the bantustans into "independent" States, and the world community has very properly withheld recognition of them.

For more than a decade, the United Nations has recognised the special role of the national liberation movements of South Africa. Drawing on the experience of the earlier practice concerning the movements of liberation in the Portuguese colonies, the General Assembly and on occasion the Security Council have established a clear practice from which some legal conclusions can be drawn. The Seminar considered that these are basic principles underpinning the right to liberation.

On the basis of the specific resolutions of the two major organs of the United Nations and on the additional basis of General Assembly resolutions, including the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (1970) and the Definition of Aggression (1974), the international community has recognised the right of the people of South Africa as a whole, irrespective of race, colour or creed, to the exercise of the right to self-determination. The connection between self-determination and apartheid has been made and the status of liberation movements recognised. Most of all, the fight of the people of South Africa, through their liberation movement, to use all the means at their disposal, including armed struggle, has been recognised.

In traditional international law, insurgency as a state of affairs has been recognised for nearly a century. Whether such a state of affairs exists has depended on recognition by other States. But in the case of liberation movements, there is the additional factor of legitimacy and the United Nations has accepted the national liberation movements recognised by the Organisation of African Unity as the authentic representatives of the people of South Africa.

Such a recognition of the legitimacy of the struggle has important consequences. The national liberation movements of South Africa, as the authentic representatives of the people, have the right to seek and obtain assistance in the exercise of the right to self-defence against the international crime constituted by the denial of self-determination and the criminal nature of the apartheid system. The Seminar drew attention to the fact that States have the legal right to provide all forms of assistance to these movements through their right to participate in collective self-defence measures against the domestic and external terrorism of the apartheid regime.

Arising from the protected role of the national liberation movement, the South African regime is bound by the rules of international humanitarian law relating to armed conflicts to treat captured combatants as prisoners of war.

Article 1 of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I) adopted on 8 June 1977 and the development of rules of international customary law show a commitment to assimilate the struggle against apartheid into the scheme of humanitarian law which regulates international armed conflicts. Protocol I recognises that the conventional criteria for identifying prisoners of war is irrelevant to the kind of military operations conducted by combatants of a national liberation movement. Any combatant as defined by article 43, who falls into the hands of the enemy, is a prisoner of war. The South African regime has refused to ratify this protocol, but the widespread recognition of its norms by the international community has demonstrated that this provision reflects customary international law as the expectation of the world community.

It should be noted that the African National Congress of South Africa made a declaration in November 1980 to apply the Geneva Convention to captured South African forces. Therefore, the continued imprisonment or execution of combatant members of the African National Congress of South Africa by the apartheid regime and its courts throws into sharp focus the criminal and reckless disregard by the South African regime of basic rules concerning the humanitarian conduct of war. These men and women are exercising their legitimate rights to overthrow a regime whose policies are now recognised as a crime against humanity under international law. The execution of combatants is a war crime. The inability or refusal of South Africa's allies to ensure that the regime respects these humanitarian rules involves the culpability of these States.

The issue of political prisoners in South Africa and the demand for their release, especially that of such leaders as Nelson Mandela, Walter Sisulu, Zephania Mothopeng, Jeff Masemula, Abmed Kathrada and Dennis Goldberg, have been closely associated with the granting of a full and free voice to the majority in the determination of their destiny.

Apart from any such consideration that these political prisoners are imprisoned for their lawful struggle, the General Assembly and the Security Council have recognised that meaningful negotiations about the future of the country can only be undertaken with the leaders of the people, many of whom are in prison.

The Seminar affirmed its support for the international campaign for the release of all political prisoners in South Africa.

Apartheid as a Crime against Humanity

The Seminar considered that the development of the rules concerning the norms of non-discrimination at the level of international law has important implications for the world community. Certain obligations are owed to all States which have a legal interest in their protection. As identified by the International Court of Justice in the Barcelona Traction case (1970), they are obligations erga omnes and derive in the contemporary world from the outlawing of acts of aggression and of genocide and also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.

The Court had earlier referred to the fact that there are principles which are binding without any conventional obligation. On this basis, the General Assembly in 1973 declared apartheid a crime against humanity. The Seminar accepted that if non-discrimination is a case of jus cogens, apartheid, perhaps the most monstrous form of racial discrimination, also constitutes a specific and particular case of violation of jus cogens.

Subsequent developments at the level of customary international law showed that apartheid contains the elements of genocide which would also be a case of jus cogens in its own right.

The adoption by the General Assembly of the International Convention on the Suppression and Punishment of the Crime of Apartheid in 1973 - now ratified by almost 80 States - must be seen in the context of numerous resolutions of the General Assembly and the Security Council which have declared apartheid a crime against humanity. The Convention associates the crime with a serious threat to international peace and security and imposes international criminal responsibility on all those who commit the crime of apartheid and their accomplices. The Convention confers jurisdiction to all States parties to try persons guilty of the crime of apartheid or those who aid and abet its commission.

The Seminar made an urgent plea to States which had not done so, especially the Western States, to ratify this Convention. It commended the work of the Commission on Human Rights which has prepared lists of individuals, organisations, institutions and representatives of States who have participated in the crime or have acted as accomplices. States parties to the Convention have the authority to take action against these individuals or entities, the latter of which, on the basis of the Nuremberg Principles, can be described as criminal organisations.

Consequences of Illegitimacy of the South African Regime

The Seminar considered that the General Assembly, acting as the spokesman of the international community and as the only universal body, was entitled to proclaim the South African regime, because of its systematic violation of jus cogens involving racial discrimination and the infringement of the right of peoples to self-determination, as having placed itself in a situation of international illegitimacy.

South Africa has not infringed a mere norm of international law for which there are traditional remedies to confront and resolve the breach.

The Seminar considered that a State which had systematically, repeatedly and seriously violated jus cogens had isolated itself from the system of fundamental values which constituted the very essence of the international community, its current existence and, indeed, its survival.

The primary consequence, in the view of the Seminar, is that a State Member of the United Nations which is in a situation of illegitimacy could be expelled from the Organisation. A State which has persistently violated the principles contained in the Charter of the United Nations, as provided for in Article 6 of the Charter, and which has been expelled, would still be answerable to the international community as the Charter provides (in Article 2, para. 6) that the Organisation shall ensure that it acts in accordance with the principles of the Charter so far as may be necessary for the maintenance of international peace and security.

Treaties entered into in breach of jus cogens are automatically void. The Seminar considered that the status of the South African regime implied that normal relations could not be pursued with it. One inescapable consequence of illegitimacy is that States should not maintain diplomatic, consular, economic or any other relations with South Africa. Such has been the demand of the international community as expressed through the General Assembly. The continued exercise of the veto by the three Western permanent members of the Security Council is a clear example of their refusal to remove a situation of serious criminality.

Namibia

It is now nearly 18 years since the General Assembly revoked the mandate exercised by South Africa over Namibia. It is more than 13 years since the International Court of Justice ruled that the continued presence of South Africa was illegal and that it was under an obligation to withdraw from Namibia immediately. The Court also held that States were under an obligation not to recognise the legality of South Africa's presence in Namibia, not to imply recognition or lend support to South Africa or its administration.

In spite of this very clear statement of the law and in spite of the overwhelming support by the international community for United Nations action over Namibia, South Africa remains entrenched in Namibia, conducting a violent colonial war against the people of Namibia, led by their liberation movement, the South West Africa People's Organisation. South Africa's refusal to accept the terms of Security Council resolution 435 (1978) of 29 September 1978 under which the United Nations would conduct free and fair elections has been assisted, firstly, by the activities of the Contact Group of States which have negotiated with the aggressor. Secondly, since 1981, irrelevant and impermissible conditions have been attached to South Africa's consent to a cease-fire and to subsequent elections through a "linkage" with the presence of troops invited by Angola to protect its sovereignty and independence from South Africa's aggression.

The Seminar was conscious that the inability of the international community to remove this serious illegality was likely to bring international law into greater disrepute. The Seminar urged maximum support for the United Nations Council for Namibia, the legal Administering Authority for Namibia, in its attempt to protect the natural and other resources of Namibia. The Seminar considered that it was an urgent priority to provide maximum political, material and other support to the South West Africa People's Organisation in its struggle for national liberation. The Seminar demanded that the Security Council take immediate steps to implement resolutions 435 (1978) and invoke the provision of Chapter VII of the Charter by imposing mandatory economic sanctions in the face of the intransigence of the South African regime.

Aggression against Neighbouring States: Terrorism and the South African Regime

Closely linked with the oppression of the South African people by the apartheid regime is the aggressiveness of the apartheid regime towards its neighbouring States. The General Assembly and the Security Council have repeatedly condemned South Africa's acts of aggression against the neighbouring African States. Since 1975 the regime has wreaked havoc and devastation on much of the civilian population of Angola, Lesotho and Mozambique. Destabilisation acts against Zimbabwe have occurred since its independence. These acts of aggression are contrary to the Charter of the United Nations and give rise to a duty to pay reparation to the victim-States.

The Seminar condemned the invocation of the alleged right of "hot pursuit" against guerrillas over land territory by a regime. This has no justification under the principles of international law. In any event, the violence associated with the "pursuit" has been exercised by the Pretoria regime against civilians and refugees.

The Seminar rejected the self-defence claim advanced by the South African regime to justify its aggression against its neighbours as devoid of any merit. The Seminar noted that since 1965, the General Assembly and the Security Council had clearly established that the illegal status of the occupying Power denied that Power the automatic right to self-defence. Conversely, the right of the victim-peoples to take steps to pursue their right to self-determination cannot be equated with the aggressor's actions.

The Seminar specifically called upon the international community to support the right of Lesotho, completely surrounded by South Africa, to have free and unfettered access to the rest of the world.

The Seminar was seriously concerned at the barbaric actions taken by the regime against refugees fleeing from its persecution. Apart from the notorious massacre at Kassinga, Angola, when more than 800 Namibian refugees were murdered by South African forces, there have been a series of other attacks, abductions of and acts of violence against refugees in Angola, Botswana, Lesotho, Swaziland and Mozambique.

One of the clear motives of these attacks is to stifle the economic development of these States and to frustrate the work of the Southern African Development Co-ordination Conference (SADCC) which aims to lessen the dependence of the economies of those countries on South Africa.

The Seminar called upon the world community to provide maximum economic and other forms of support to those States which have been the victims of the racist aggression and destabilisation.

The Seminar considered that refugee camps and settlements enjoy a special, protected status in international law. It drew attention to the draft Principles on Prohibition of Military and Armed Attacks on Refugee Camps and Settlements, adopted by the Executive Committee of the Office of the United Nations High Commissioner for Refugees in 1983. Under the first draft principle, camps and settlements accommodating refugees shall not be the object of military or armed attacks. The second draft principle lays down that military attacks on refugee camps and settlements are in grave violation of existing fundamental principles of international humanitarian law. They can never be justified under any circumstances and must consequently always be condemned.

Furthermore, the Seminar made an earnest appeal to all States to respect the status and rights of refugees from South Africa, especially the principle that prohibits the expulsion or return of a refugee in the frontiers of a State where his or her life or freedom would be threatened on account of race, religion or nationality.

Action against the Apartheid Regime

The Seminar recognised that the international community had established clear guidelines for action in support of international law and for combating crimes committed by South Africa. Since 1963, the General Assembly has passed a large number of resolutions prescribing courses of action addressed to Governments, international and non-governmental organisations and individuals. These resolutions have addressed themselves to the need for the cessation of military, nuclear, economic, sporting, cultural and other collaboration with South Africa.

The Seminar affirmed its support for those resolutions and programmes of action as providing a necessary basis for concerted and co-ordinated action against the apartheid regime. It appealed to public opinion, especially to lawyers in the West, to recognise the urgency of the situation in South Africa and to assist in the process whereby their Governments would support action against the regime and provide assistance to the liberation movements.

The most urgent need is for the Security Council to impose binding economic, military, nuclear and other forms of sanctions because the situation in southern Africa is a clear threat to international peace and security. Internally, the regime wages war on its own population through a process of enslavement, murder and terror. Externally, the attacks on front-line States and neighbouring States and its possession of a nuclear capability indicate that there is a clear and present danger to the international community requiring the Security Council to act.

In the meantime, the Security Council should strengthen both the content and the machinery of monitoring the arms embargo imposed in 1977. States should follow the example of many countries which have imposed voluntary embargoes in the areas of the sale of oil, investment and other forms of collaboration.

Where Governments are unwilling to act, the Seminar appealed to legal organisations, jurists and non-governmental organisations and individuals to consider bringing actions in their municipal courts to challenge governmental inactivity or complicity in such matters as the implementation of the arms embargo. Jurists have a special role in ensuring that Governments implement in good faith their obligations under the Charter of the United Nations and that legislative measures taken to implement such matters as the arms embargo are consistent with international obligations.

The Seminar noted that in a number of countries litigation strategies had been tried or mooted by lawyers who had relied on rules of customary international law or the Charter in order to strike at acts of collaboration with a regime which violated peremptory norms of international law.

The Seminar recognised that the use of domestic and international law to combat the apartheid regime could be advanced in a number of ways. Committees of lawyers in as many jurisdictions as possible should be set up to study ways by which General Assembly and Security Council resolutions and internationally accepted human rights norms could be used in lawsuits to impede or frustrate the practice and perpetuation of apartheid. Assistance should be provided to trade unions and anti-apartheid movements that wish to impede the export or import of materials or know-how that are in breach of international obligations.

Finally, the Seminar believed that Governments, individuals and organisations had a duty to publicise as widely as possible the norms of law relating to the struggle of the peoples of southern Africa. There ought to be greater awareness of the issues at stake, the need to support the liberation movements of South Africa and Namibia and a recognition of the way in which rules of law must be used as effective instruments of the international community in the fight against racism and colonialism so as to bring about a true and enduring peace in southern Africa.

This resource is hosted by the Nelson Mandela Centre of Memory, but was compiled and authored by Padraig O’Malley. Return to the Nelson Mandela Centre of Memory site.